State v. Cruse
76 S.E.2d 320
N.C.
1953
Check Treatment
76 S.E.2d 320 (1953)
238 N.C. 53

STATE
v.
CRUSE.

No. 364.

Supreme Court of North Carolina.

June 12, 1953.

*323 Charles B. Aycock, Kinston, for Petitioner-appellant.

Harry McMullan, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

DEVIN, Chief Justice.

The North Carolina Post-Conviction Statute, G.S. § 15-217, under which the petition in the case before us was filed, provides that any person imprisoned in State's Prison or jail "who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of North Carolina, or both, as to which there has been no prior adjudication by any court of comрetent jurisdiction may institute a proceeding under this article."

The statute provides that the proceeding be commenced by filing petition in the Superior Court of Wake County or the county in which the conviction took place, setting forth the respects in which petitioner's constitutional rights were violated, and that the constitutional questions raised have not heretofore been raised or passed upon by any court of competent jurisdictiоn. G.S. §§ 15-218 to 15-222. The procedure prescribed by the statute was followed in this case, and the presiding judge after hearing all the evidence, made findings of fact and entered judgment thereon adverse to the petitioner.

The statute which authorizes the procedure by which the defendant has sought relief in the instant case was not intended to operate as a substitute for an appeal. It was not designed merely to afford to a person heretoforе convicted of crime the right to present to this Court assignments of error in the trial in which he was convicted and from which he did not appeal. The statute was enacted for the purpose of providing an adequate, simplе and effective post-conviction remedy for persons who have suffered substantial and unadjudicated deprivation of constitutional rights in the original action which resulted in their conviction, because they were prevеnted from claiming such constitutional rights by factors beyond their control. Miller v. State, 237 N.C. 29, 74 S.E. 2d 513. The statute provides a procedure by which a person convicted of crime may thereafter obtain a hearing upon the question whethеr he was ‍​​‌​‌​‌‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌‍denied due process of law. It affords an opportunity to inquire into the constitutional integrity of his conviction. People v. Dale, 406 Ill. 238, 92 N.E.2d 761.

In the interpretation of the Illinois Post-Conviction Statute, S.H.A. ch. 38, § 826 et seq., which is similar to the North Carolina statute, the Supreme Court of Illinois in *324 People v. Hartman, 408 Ill. 133, 96 N.E.2d 449, 451, had this to say: "It certainly was not the intent of the General Assembly, by the new act in question, to enable a person convicted of a crime to have a review of ordinary questions of рrocedure, for which the law already provides a remedy, by charging that they constitute a denial of constitutional rights." And in People v. Farley, 408 Ill. 288, 96 N.E.2d 453, 456, the Court again pointed out that "objections to evidence, or ordinary errors occurring during the course of the trial do not constitute denials of rights guaranteed by the constitution." See also People v. Reeves, 412 Ill. 555, 107 N.E.2d 861.

It was not the intention of the legislature to afford under this statute a general review of every еrror a prisoner who is dissatisfied with his conviction and sentence may assert, but only in those instances in which a substantial denial of a constitutional right has been made to appear.

Furthermore, the statute under which the defendant's petition was filed requires that petitioner shall "clearly set forth the respects with which petitioner's constitutional rights were violated". G.S. § 15-218. In compliance with this provision petitioner has set out in his amended petition the severаl respects in which he ‍​​‌​‌​‌‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌‍claims he suffered deprivation of his constitutional rights in the trial which resulted in his conviction. Each of these was considered by the court below and findings of fact with respect thereto entered of record. These findings are supported by evidence and are binding on the defendant on this review. Miller v. State, 237 N.C. 29, 74 S.E.2d 513. The defendant's claim that he was unable to subpoena witnesses is not borne out. Several witnesses were present and testified at his instance. The fact that on the trial photographs competent for some purpose were admitted and that evidence in corroboration of witnesses examined was received is insufficient to show error or unfairness. A motion for judgment as of nonsuit if made would have been unavailing as there was evidence both of assault and robbery, and of conspiracy to commit these crimes, and a motion to quash the second count if allowablе would have presented only a question of procedure by way of amendment or additional bill. The failure of the record to show the court's charge to the jury is inconsequential. Error may not be predicated on the possibility of error in a charge which was not reported and as to which no error is now assigned. The presumption is that the court charged the jury properly as to the law applicable to all phases of the evidencе. State v. Russell, 233 N.C. 487, 64 S.E.2d 579. But these are matters of procedure. The proceeding authorized by the statute does not contemplate a review of errors in the trial subsequently assigned after a conviction from which defendant did not appeal. The right to an appeal is unqualifiedly given in North Carolina to every person convicted of a criminal offense in any court. G.S. § 15-180. No constitutional question is presented by assignments of error relating only to matters of procedure. The constitution does not guarantee to a defendant charged with crime a trial free from all error. He may not be held to have suffered deprivation of constitutional rights merely from adverse rulings of the trial court on matters of procedure.

The defendant, however, relies upon the fact that in the trial court no counsel was assigned to aid him. He avers that he was unacquainted with legal procedure, was of limited education, and unable adequately to defend himself. He contends that legal counsel would have enabled him to make motions and raise questions material to his defense, and that there was absence of that due process оf law guaranteed him by the Fourteenth Amendment to the Constitution of the United States and Article I, sec. 17 of the Constitution of North Carolina.

It is not contended that request was made to the court that counsel be assigned him or that the court wаs advised he was unable to secure counsel. The bill of indictment did not charge a capital felony. The Constitution of North Carolina in Art. I, sec. 11, declares the right of every man charged with crime "to have counsel for his defensе". This provision of the Constitution, however, as interpreted by this Court, does not make it incumbent upon the trial judge in all cases of criminal prosecution *325 for noncapital offenses to assign counsel but only when the circumstances are such ‍​​‌​‌​‌‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌‍as would seem to require it as essential to a fair trial. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. The settled rule in North Carolina was stated in State v. Hedgebeth, 228 N.C. 259, 45 S.E. 2d 563, 567: "In capital felonies these provisions [of the Constitution] relative to counsel are rеgarded as not merely permissive but mandatory. * * * But in cases of misdemeanors and felonies less than capital it has been the uniform practice in this jurisdiction to regard these provisions as guaranteeing the right of persons aсcused to have counsel for their defense, to be represented by counsel, and the right to have counsel assigned if requested and the circumstances are such, for financial or other reasons, as to show the aрparent necessity of counsel for the protection of the defendant's right.

"But we cannot hold that in all cases, in the absence of any present statute to that effect, the burden is imposed upon the state to provide counsel for defendants. In cases less than capital the propriety of providing counsel for the accused must depend upon the circumstances of the individual case, within the sound discretion of the trial judge." Statе v. Wagstaff, 235 N.C. 69, 68 S.E.2d 858; In re Taylor (State v. Taylor), 230 N.C. 566, 53 S.E.2d 857; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520; State v. Farrell, 223 N.C. 321, 26 S.E.2d 322.

The Hedgebeth case was affirmed by the Supreme Court of the United States, Hedgebeth v. North Carolina, 334 U.S. 806, 68 S. Ct. 1185, 92 L.Ed. 1739.

The rule in force in North Carolina is in accord with that stated by the Supreme ‍​​‌​‌​‌‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌‍Court of the United States in recent decisions. In Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 192, 96 L.Ed. 154, it was said: "This Court has repeatedly held that the Due Process Clause of the Fourteenth Amendment requires states to afford defendants assistance of counsel in noncapital criminal cases when there are spеcial circumstances showing that without a lawyer a defendant could not have an adequate and a fair defense." There the Court was speaking of an eighteen-year old boy with record of mental abnormality. And in Gallegоs v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 147, 96 L.Ed. 86: "The Federal Constitution does not command a state to furnish defendants counsel as a matter of course, as is required by the Sixth Amendment in federal prosecutions. Lack of counsel at state noncapital trials denies federal constitutional protection only when the absence results in a denial to accused of the essentials of justice." The defendant in that case was a Mexican, unable to speak or read English, agаinst whom an alleged forced confession was used. To the same effect was the ruling in Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647, where the defendant was an inexperienced youth incapable of adequately representing himself and whose requеst for counsel had been denied. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Quicksall v. Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188.

The ruling in Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, was based on the showing that conviction was predicated on misinformation submitted by the prosecutor or misreading of the record by the Court. Likewise the facts underlying the decisiоns in Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686, are distinguishable.

In the case at bar, however, the facts in evidence do not reveal a situation which would indicate that the failure to assign counsel, ‍​​‌​‌​‌‌‌‌​‌​‌​‌​​​‌​‌​​​​‌‌‌​‌‌‌​‌​‌‌​‌‌‌‌‌​​​‌‍in the absence of request or notice of special circumstances rеquiring it, constituted denial of due process of law.

The defendant Cruse was 39 years old. He had completed six grades in school. He admitted he had served a substantial portion of the last twenty in prison in North Carolina, in Michigan, and in Atlantа (Federal). He had been tried in court many times and convicted in twelve or more criminal cases such as forgery, breaking and entering, larceny of automobile, felonious assault (four times), highway robbery, violation liquor and motor vehicle *326 statutes. In most of these he had been represented by counsel. Certainly he was not without experience in the trial of criminal cases in court. In the trial in which he was last convicted he made no request for counsel, conducted his case himself, crossexamined the State's witnesses, testified in his own behalf, offered three other witnesses. He was given opportunity to address the jury but declined, and no argument to the jury was made by the prosecution.

After a careful consideration of all the facts and circumstances surrounding the trial in which petitioner was convicted, and the facts brought out in the hearing on his petition under the statute, we reach the conclusion that the fаilure of the trial court to assign counsel, and the fact that he was not represented by counsel did not constitute a deprivation of due process of law or violate any constitutional right of the petitioner.

The judgment of Judge Harris dismissing the petition and denying relief thereunder is

Affirmed.